He/She/They/Them…it’s all the same to him.
Don’t stress over the men’s/ladies’ room if so inclined,
Remember…today there’s a 3rd choice for those who can’t make up ‘their’ mind.
He/She/They/Them…it’s all the same to him.
Don’t stress over the men’s/ladies’ room if so inclined,
Remember…today there’s a 3rd choice for those who can’t make up ‘their’ mind.
Capitalism (which requires an ever expanding economy according to most experts) and a sustainable environment are incompatible in a world of finite resources and 7 billion souls. In fact, modern mega-sized corporations, with the government’s tacit virtual blessings, have killed more Americans with their toxic emissions and environmental destruction by orders of magnitude than Bin Laden ever dreamed of. Yet, they are held unaccountable and remain virtually immune from prosecution for these crimes against humanity.
There are physical limits to growth on a finite planet. In 1972, the Club of Rome issued their groundbreaking report—Limits to Growth (twelve million copies in thirty-seven languages). The authors predicted that by about 2030, our planet would feel a serious squeeze on natural resources, and they were right on target.
In 2009, the Stockholm Resilience Center introduced the concept of planetary boundaries to help the public envision the nature of the challenges posed by limits to growth and physical/biological boundaries. They defined nine boundaries critical to human existence that, if crossed, could generate abrupt or irreversible environmental changes.
Today’s global economy and the various regional and national economies regularly neglect planetary boundaries. Crossing a boundary is tantamount to crashing through a guardrail and plunging over a cliff. The blind encouragement of economic growth that does not respect these boundaries is setting up human civilizations for collapse. Two of the most harmful types of growth are ruthless and futureless.
Ruthless growth benefits a few at the top but does nothing for the middle class. One of the reasons that Bernie Sanders’ presidential campaign has attracted larger and larger audiences is that he says the most crucial issue facing the United States is the gross discrepancy between the middle class and the billionaire class.
Futureless growth destroys resources, such as water, forests, fisheries, and farmland that will be needed by our children and grandchildren, and by wildlife. Futureless growth directly conflicts with common family values. We tell our children to save for the future rather than squander their money. We don’t tell them to outspend their peers. We don’t tell them to judge the quality of their lives based on material possessions and quarterly financial reports.
To remain within the nine planetary boundaries, nations must shed the fetish of economic growth and transition to a true-cost, steady state economy. Some of the critical transition steps include:
There are about seven billion people on earth today, and forecasts indicate there will be nine billion by 2050. Already, almost one billion malnourished people are feeling the squeeze, as they painfully bear testimony to the truth of what Malthus predicted two centuries ago. Key first steps to stabilizing population in a progressive way are:
Our global economy is treating the planet as if it were a business in a liquidation sale. Even environmental organizations—devoted to environmental protection— have been slow to acknowledge the major causes of environmental degradation, such as perverse economic incentives encouraging raw resource extraction and non-renewable energy use. We need environmental leaders to speak out for a new, just, and true-cost economy; and to challenge the mindless embracing of economic growth—even ruthless and futureless growth. Environmental leaders should be driving the push toward refocusing economic thinking on the changes that we will have to make if we are going to move to a healthier economy that exists within the nine planetary boundaries. Only if humanity stays within these nine boundaries can it continue to develop and thrive for generations to come.
Despite the legal fiction of presumed innocence, the injustice of imprisoning the innocent–our very own modern ‘witch hunts’–continues unabated in shocking numbers.
In the Dark Ages, the thief and the murderer were as likely to suffer the same fate as their 18th century counterparts. The loss of life had dual purpose, as punishment and as an offering to appease the gods. Alas for the victim, human sacrifice was frequently carried out in a hideously savage manner.
Even when Christianity spread across the globe, there was little respite from the bloodshed–perhaps the opposite. The Romans vied with their barbarian neighbors for new and agonizing methods of death, creating a wealth of martyrs in the process.
The gods (and today, the self-righteous) demanded a heavy toll from their earthly followers, human fodder was needed — and who better to pay the ultimate price than felons and thieves? While today, Americans take solace in the theory of separation between Church and State, few seem aware of how the state has virtually substituted itself as a ‘god’ in its own right as they pledge allegiance (worship?) to the flag or hear a judge pronounce they must ignore the principle of jury nullification in finding a defendant guilty no matter how unjust the law or its application, or, indeed, forgetting the very principles of the post WWII Nuremberg trials where we executed condemned Nazis who unsuccessfully argued they were only following the law at the time of their offenses and crimes against humanity.
In the Dark Ages, the ‘erring’ (Galileo?) would find themselves sentenced to death by way of human sacrifice. At the time, it was seen as the best hope of a good harvest (or ‘deterrent’ in modern times) and cure for disease.
Every age had its own method of sacrifice. Given the evidence available today, it is difficult to asses whether all sacrifices were carried out as punishment or whether some died willingly, as messengers to the gods. It is equally hard to tell from excavated corpses whether mutilations took place before death by sacrifice, or after as part of a funeral rite.
The Celts had hundreds of gods to worship. Some were considered greater than others (felonies vs. misdemeanors/infractions?) although only a few had specific purposes, for example, for war, fertility or cure. Julius Caesar noted of the Celts: “They believe that the execution of those who have been caught in the act of theft or robbery or some crime is more pleasing to the immortal gods (Justice?), but when the supply of such fails, they resort to the execution of the innocent.”
Scores of ‘wrongdoers’ were engulfed in flames after being caged in a giant wicker colossus as the Celts imposed a terrifying regime of ‘justice’ under the auspices of the Druids. Alternatively, Celts might shoot victims with arrows or impale them at the chosen holy site. In common with other races, the Celts also burned their sacrifices. Humans were committed to the flames in a giant wicker cage in the form of a god. Dozens of young people might be crammed into such a colossus before a spark ignited the pyre. In attendance were the Druids, the highly organized priest and soothsayer network which inspired the Celts in France, Britain, and Ireland at the time–the equivalents of our prosecutors/persecutors and judges today.
by Marissa Luck
Thomas Kennedy isn’t the only innocent man in the new book “Stolen Years,” but his story may be the saddest.
Author Reuven Fenton devoted an 8,000 word chapter to exploring Kennedy’s story in the book “Stolen Years: Stories of the Wrongfully Imprisoned,” to be released Tuesday.
Kennedy was convicted in 2001 of raping his daughter, then 11, but she later admitted making it all up, prompting the court to toss his conviction. He was exonerated and released from prison in 2012.
“Thomas Kennedy is a very unique case,” Fenton said by phone Saturday. “It’s enough to go to prison for a crime you didn’t commit, but to go to prison for that particular reason is just so horrifying.”
Fenton has covered murder and scandal for the last eight years at the New York Post. In recent years, he’s watched the number of exonerations climb steadily in his state. Once, he attended a press conference for David Ranta, a man who was freed from prison and exonerated in 2013, after serving 23 years of a 37.5 year sentence for the murder of a Brooklyn rabbi. At the press conference, Fenton recalled reporters peppering Ranta with questions like, “What will be your first meal out of prison?” and “What’s the first thing you’ll do when you’re free?”
“I was thinking, this guy had a 20-year long story to tell, and we’re just scratching the surface,” Fenton said. That sent him on a quest to uncover the stories of other wrongfully imprisoned men and women.
After combing through 1600 cases listed with the National Registry of Exonerations, Fenton whittled the cases down to a pool of ten people, including Kennedy. A Cowlitz County lawyer put the two in contact, but at first Kennedy resisted the idea. Eventually his “no comment” turned into an interview, and Kennedy opened up, spending ten to 12 hours with Fenton to tell his story.
Unlike many cases of people who were exonerated, Kennedy didn’t have the help of an organization or lawyer to prove his innocence. After years of filing appeals, the Longview man finally gave up.
“He took this stack of papers and set them down and said, ‘I’m leaving it up to God,’ because the process was just so frustrating for him,” Fenton said. Then, “out of the blue” his mother called him, asked if he was sitting down, and told him his daughter was ready to recant her story.
Yet even after being released, Kennedy suffered from ongoing trauma related to his experience in prison, where he was the target of frequent attacks. Besides the emotional baggage, he barely had enough money to scrape by. At the time when Fenton interviewed him in early 2014, Kennedy was waking up at the crack of dawn to buy and sell wooden pallets, and some days he didn’t make enough money to cover his gas.
Last year, he was slated to receive a $500,000 settlement from the Wrongful Conviction Compensation Act, but the money had been tied up in state budget talks earlier this year. Kennedy told The Daily News he planned to use funds to invest in his grandson’s future, buy land and start a business.
“Thomas, to me, is an example that you can go on living after suffering something that horrific, humiliating and devastating,” Fenton said.
Kennedy and the other nine people in “Stolen Years” are but a tiny fraction of the wrongfully imprisoned people in the U.S. An estimated 2.5 to 5 percent of prisoners are innocent, which means up 100,000 innocent people are behind bars, Fenton said.
“The problem is that there is a culture of police and prosecutors with this desire to win at all costs,” he said. For some prosecutors and detectives, it becomes a numbers game of filling quotas, he added.
That’s starting to change now though, as public awareness grows.
In 1989, the year the University of Michigan Law School started the National Registry of Exoneration, there were just 22 people exonerated, according to the registry. That number grew to 139 last year.
“I think we’re in the midst of that change now, but we’re still very early,” Fenton said.
Dancing Baby case: Lenz v. Universal
‘Ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.’
With a highly-anticipated ruling in what has become known as the “dancing-baby case” delivered on Monday, the Ninth Circuit Court of Appeals affirmed the importance of allowing for the “brief, non-commercial use” of copyrighted material by saying copyright holders must consider whether or not such use would be considered ‘Fair Use’ before issuing takedown notices to third-party hosting platforms like YouTube or social media outfits.
Officially called Lenz v. Universal, the case centers around Stephanie Lenz, who in 2007 posted a YouTube video of her two young children dancing while a song performed by Prince, and owned by the Universal Music Group, played in the background. Universal issued a takedown notice to YouTube and charged that Lenz had violated copyright law by posting the video.
With her case taken up by the legal team at the Electronic Frontier Foundation, a digital rights group based in San Francisco, the case quickly became a touchstone for various legal interpretations of copyright law and arguments surrounding censorship and the fair usedoctrine.
In siding with Lenz, the court issued a decision that may have far-reaching implications by ruling that copyright holders “must consider the existence of fair use before sending a takedown notification.”
As the San Francisco Chronicle reports:
Recording companies, motion picture studios and other copyright owners issue numerous takedown notices each day, targeting everything from home videos to campaign ads that include segments of songs or newscasts. When a copyright-holder tells a website like YouTube that one of its postings violates the holder’s exclusive rights to license the material, federal law requires that the posting be removed immediately.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said the copyright-holder must first consider whether such a video amounts to “fair use” of the work, making it eligible to be legally posted. Fair use includes journalistic accounts and criticism, educational uses for teaching or research, and brief, private postings that don’t damage the commercial market for the work.
The law “requires copyright-holders to consider fair use before sending a takedown notification,” and those that fail to do so can be held liable for damages, said Judge Richard Tallman in the 3-0 ruling, the first on the issue by any appeals court.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”
According to EFF, the ruling in the Lenz case comes at a critical time as heated political campaigns—specifically the current presidential primaries—will likely lead to a rash of copyright takedown abuse. As the group notes, criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove, or stall, such criticism from appearing on the Internet.
“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends,” said McSherry. “We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”
Journalist Joe Mullin, writing for Ars Technica, says the Ninth Circuit’s opinion could strengthen the legal position of fair use advocates in other cases, but also noted it should not be considered a total victory when it comes to all the ways large media companies deal with copyright and takedown notices. Mullin explains:
The DMCA takedown landscape today is very different from 2007, when Universal and other big copyright holders were essentially doing takedowns manually. Today, DMCA notices are automated, and large copyright holders demand that thousands of links be removed at a time. Internet sites like Google remove millions of URLs each year in response to these massive DMCA notices.
The judges are optimistic that computer-driven copyright policing could strike the right balance. “We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use,” Tallman writes. In situations where a video and audio track matches “nearly the entirety” of a sample submitted by copyright owners, a computer program could still be thought to have taken fair use into account. Copyright owners could use human employees “to review the minimal remaining content a computer program does not cull,” he suggests.
The majority’s near-endorsement of mass takedown routines is telling. While today’s ruling undoubtedly strengthens EFF’s view of fair use, it’s unlikely to change much about the millions of takedown notices now being sent each year to Internet intermediaries. It’s still a system that won’t leave much room for those rare situations where a complete copy can still be fair use. If YouTube lawyers think their filter already takes fair use into account, and they likely do, then this ruling won’t make them change anything.
And, of course, here’s the dancing baby:
The Google Blues (live!)
Better Recorded Version of Google Blues by Rich Lyon and DelGrosso
by Curtis Boyd
Defensive Driving is Safe Driving
Defensive driving is a type of driving that is highly safety-oriented. When people focus on defensive driving, their goal is to steer clear of any of the dangers that are frequently seen on the road. Defensive driving can often prevent many perilous and often even fatal situations from occurring on the streets. If you want to drive safely, then defensive driving should be something you participate in 100 percent of the time. A respected DUI attorney such as Colorado Springs, Colorado-based Christian Schwaner is extremely well-versed in what is considered reckless endangerment. Keep yourself, passengers in your vehicle and fellow drivers on the road safe and secure by always keeping the following defensive driving tips in mind.
Reduce Distractions to the Best of Your Ability
If you’re distracted when you’re behind the wheel, then you’re potentially a big danger to yourself and to others who are sharing the road with you. Cell phone use, snack consumption, engaging in conversation with others and listening to music can all be extremely distracting to drivers. If you want to listen to music while in the car, for example, try to avoid participating in a discussion with any of your passengers. The fewer distractions you have when you’re in your auto, the better it is for everyone. Distractions make drivers vulnerable to accidents.
Maintain Your Concentration
Safe driving involves a lot of thinking. When you’re in your vehicle, you have to consider many different things, from traffic laws to conditions on the road and beyond. You also have to pay attention to other vehicles that are near you. The list of considerations is practically endless. This is why it’s always so vital for drivers to maintain strong concentration. If you daydream and fail to pay attention to the task at hand — driving — then you could potentially lead to major danger on the road for all.
Get Sufficient Sleep
Driving while exhausted and drowsy is a serious no-no. Don’t ever get behind the wheel of a car unless you’ve gotten sufficient rest the night before. Not only is it crucial to always be fully alert and awake when you’re driving, but it’s also crucial to refrain from consuming alcohol and taking drugs before getting in the car. Remember, substances such as alcohol and drugs can make you significantly less alert. They can also greatly reduce your concentration abilities.
Educate Yourself on Traffic Laws Regularly
If you want to be a safe and highly conscientious driver who cares about yourself and who also cares about the well-being of all the other people in vehicles near you, make sure you’re always aware of updated traffic laws.
Christian A. Schwaner, P.C.
It’s not that the police or public don’t care about brutal assaults on Olympia’s streets in broad daylight because, well, they don’t! (Oly’s Tenderloin Street Crime: Bizniz As Usual?)
by Amelia Dickson
Olympia, WA (7-11-15) — A 20-year-old Olympia woman will serve a six-month jail sentence after pleading guilty to second-degree assault, a charge stemming from a May altercation at the Artesian Commons Park in downtown Olympia.
Alexandra K. Thompson entered her plea before Thurston County Superior Court Judge Mary Sue Wilson on Friday. She had been in custody in the Thurston County Jail since her May 10 arrest, and will serve the rest of her sentence in the county jail.
Her co-defendant, 32-year-old Brynn K. Thomas, pleaded guilty in June to second-degree rendering criminal assistance. She hasn’t been sentenced yet.
Deputy Prosecutor Jim Powers recommended the six-month sentence, and told the judge that the May 7 assault left the victim hospitalized with facial fractures and cuts that required stitches.
“This was a completely unprovoked attack,” Powers said.
Olympia police responded to the Artesian Commons about 4:30 p.m. after a witness reported that a woman was bleeding heavily from her head, according to court documents. The woman was transported to Providence St. Peter Hospital. She identified her attackers as Thompson and Thomas.
Surveillance footage of the park showed that the two women arrived at the park in a white van. They climbed out of the vehicle and approached the victim, who was riding her bike past the park. Footage shows Thompson punching the victim in the face, knocking her off the bicycle.
Footage shows that Thompson then punched the woman in the head 13 times while she was lying on the ground, according to court documents.
Karl Hack, Thompson’s attorney, asked the judge to award his client a five-month sentence. He said Thompson wants to take advantage of free tuition in a GED program before she turns 21. Wilson denied his request, explaining that the serious charge warranted the six-month sentence.
During the hearing, Thompson apologized for the assault.
“She did not deserve what I did to her. … I am not proud in anyway of what I did,” Thompson said.
(*Ahem!* It’s been said a picture is worth a thousand words. The moral of the following photos is: Grow up to be pretty–you’ll do a lot less time for your crimes and your critics will be written off as curmudgeons…or worse.)
by Andrew Davis
Shelton, WA (7-9-15) — Shelton police spent most of the July 1 morning responding to reports that a man had been stabbed outside Bob’s Tavern on South First Street.
After locating the victim, who had a laceration on his shoulder, police arrested Miguel Mendoza, 45, later that day and charged him w/assault w/a deadly weapon, a 2nd degree (Class ‘B’) felony. Police responded to the call shortly after midnight.
Officers located the victim at the Arcadia Chevron on Arcadia Road and Olympic Highway Souther, where they identified him as 36-yeajr old Ray Walkup of Elma, according to a probable cause affidavit.
Walkup was applying pressure to a would w/a towel in his upper right chest area near his shoulder, according to the police report.
Walkup told police Mendoza had stabbed him with a gray box cutter outside the Ritz Drive-In, which is located across the street from Bob’s Tavern on South First Street.
Walkup was transported to Mason County General Hospital and police continued the search for Mendoza. Police located Mendoza in the 300 block of South Fifth Street and arrested him on a Washington State Department of Corrections felony warrant.
Mendoza was transported to Mason County Jail, where he remained Tuesday on $7,500 bail. He was scheduled to be arraigned Monday.
Shelton, WA (7-9-15) — Stacy isn’t the first woman to invoke the abused woman defense against charges of domestic violence. It also illustrates the problem of domestic violence runs deeper than gender.
Andrew Davis (for the Mason County Journal) reported the woman accused of stabbing her husband last month pleaded not guilty Monday in Mason County Superior Court, Judge Amber Finlay presiding.
Stacy Harvey, 50, of the 200 block of South 12th Street, is facing attempted murder charges for allegedly stabbing her husband, Walter Harvey, in the back on June 22, 2015.
Harvey has a pre-trial hearing scheduled for 8-17-15 and a trial date set for 8-25-15.
According to a probable cause affidavit, Harvey’s husband called the police after being woken up with a knife sticking out of his back. A blanket was pinned between the knife and his back.
Harvey Told police she was tired of her husband’s abuse toward her. She said she would track her husband down and “finish the job” if she was released.
Harvey is being held at Mason County Jail on $150,000 bail.
by Randy Barnett
[Mr. Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law.]
(As we celebrate Independence Day, I thought I would post a couple excerpts about the Declaration of Independence from my forthcoming book, Our Republican Constitution: Securing the Sovereignty of the People (which is now available for pre-order on Amazon). This passage of the book appears after the one I posted here.)
Today, while all Americans have heard of the Declaration of Independence, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the King himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known.
So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence the Declaration’s famous reference to “a long train of abuses and usurpations” and the list that followed. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
But before this list of particular grievances come two paragraphs succinctly describing the political theory on which the new polity was founded. To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.
This first sentence is often forgotten. It asserts that Americans as a whole, rather than as members of their respective colonies, are a distinct “people.” And this “one people” is not a collective entity, but an aggregate of particular individuals. So “they” not it should “declare the causes which impel them to the separation.”
To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of the people of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. As Committee of Five delegate Roger Sherman observed in 1774, after hostilities broke out with the British, “We are Now in a State of Nature.”
But what are these “Laws of Nature”? To answer this, we can turn to a sermon delivered by the Reverend Elizur Goodrich at the Congregational Church in Durham Connecticut on the eve of the Philadelphia constitutional convention. At the time of the founding, it was a common practice for ministers to be invited to give an “election sermon” before newly-elected government officials, in this case the delegates to the Constitutional convention, to encourage them to govern according to God’s ways.
In his sermon, Goodrich explained that “the principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse.” These laws, Goodrich observed, “may be considered as principles, in respect of their fixedness and operation,” and by knowing them, “we discover the rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature.” These rules of conduct, he then explained, “are as fixed and unchangeable as the laws which operate in the natural world. Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.”
In this sense, natural laws govern every human endeavor, not just politics. They undergird what may be called “normative disciplines,” by which I mean those bodies of knowledge that guide human conduct—bodies of knowledge that tell us how we ought to act if we wish to achieve our goals. To illustrate this, Goodrich offered examples from agriculture, engineering, and architecture:
He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and strength, when he is about to erect an edifice.
To ignore these principles is nothing short of denying reality, like jumping off a roof imagining that one can fly. “For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost.” By making “a new world,” Goodrich meant denying the nature of the world in which we live. He concludes: “No more can mankind be conducted to happiness; or civil societies united, and enjoy peace and prosperity, without observing the moral principles and connections, which the Almighty Creator has established for the government of the moral world.”
The fact that Goodrich was a relatively obscure public figure—though his son would go on to serve as a Federalist congressman from Connecticut—shows the commonplace understanding of natural law. And Goodrich’s task was to remind the Connecticut delegates of the proper understanding of “the Laws of Nature and of Nature’s God.”
The most famous line of the Declaration, and for some the only line they know. The Committee of Five’s draft referred to these as “inalienable” rights, but for reasons unknown the word was changed to “unalienable” sometime in the process of printing it for the public.
What are inalienable or “unalienable” rights? They are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that these rights are inalienable? The Founders want to counter England’s claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.
The standard trilogy throughout this period was “life, liberty, and property.” For example, in its Declaration and Resolves of the First Continental Congress (1774), Congress had previously asserted that “the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts,” have the following rights: “That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as the influential British political theorist John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”
Perhaps the most commonly repeated formulation combines the right of property with the pursuit of happiness. This was the version drafted by George Mason for the Virginia Declaration of Rights—not the version actually approved by the Virginia convention in Williamsburg on June 11th, 1776, the very day that the Committee of Five was formed in Philadelphia to draft the Declaration for the nation.
The Virginia Convention balked at Mason’s specific wording “on the ground that it was not compatible with a slaveholding society. They changed ‘are born equally free’ to ‘are by nature equally free,’ and ‘inherent natural rights’ to ‘inherent rights.’” The adopted version read:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
As we will see, the language of Mason’s radical draft—rather than either Virginia’s final wording or Jefferson’s more succinct formulation—became the canonical statement of first principles. Massachusetts, Pennsylvania and Vermont adopted Mason’s original references to “born equally free” and to “natural rights,” into their declarations of rights. In 1783, this language was used by the Massachusetts supreme court to invalidate slavery in that state. And in 1823, it was invoked in an influential opinion by Justice Bushrod Washington explaining the meaning of “privileges and immunities” of citizens in the several states.
On the one hand, this sentence of the Declaration will become a great embarrassment to a people who allowed the continuation of chattel slavery. On the other hand, making a public claim like this has consequences. That is why people make them publicly—to be held to account. Eventually, the Declaration became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. It had to be explained away by the Supreme Court in Dred Scott. It was much relied upon by Abraham Lincoln. And ultimately it needed to be repudiated by defenders of slavery in the South because of its inconsistency with that institution.
Another overlooked line, but for our purposes, possibly the most important. For it states what will later become the central underlying “republican” assumption of the Constitution: that “first comes rights and then comes government.” Here, even more clearly than Mason’s draft, the Declaration identifies the ultimate end or purpose of republican governments as securing the pre-existing natural rights that the previous sentence affirmed is the measure against which all government—whether of Great Britain or the United States—will be judged.
For reasons I will explain in this book, there is a tendency today to focus entirely on the second half of this sentence to the exclusion of the first part that references the securing of our natural rights. Then, by reading “the consent of the governed” as equivalent to “the will of the people,” the second part of the sentence seems to support majoritarian rule by the people’s “representatives.” In this way, the “consent of the governed” is read to mean “consent to majoritarian rule.” Put another way, the people can consent to anything, including rule by a majority in the legislature who will decide the scope of their rights as individuals.
But read carefully, one sees that the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who comprise the “governments” that “are instituted among men.”
The Declaration stipulates that those who govern the people are supposed “to secure” their pre-existing rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” So the “consent of the governed” cannot be used to override the inalienable rights of the sovereign people.
So we should recognize that there has arisen a tension between the first part of this sentence and the second. In political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly-enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.
If we take both parts of this sentence seriously, however, I believe this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of any legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed.
In Chapter 3, we will see how the concepts of “natural rights” of the people and “the consent of the governed,” were reconciled by the idea of presumed consent. The people as a whole can only be presumed to have consented to what was actually expressed in the written Constitution and, absent a clear statement to the contrary, they cannot be presumed to have consented to surrender any of their natural rights.
Later in our history, the uncertainty of ascertaining natural rights will be addressed by shifting the question from specifying particular rights to critically examining whether any particular restriction of liberty can be shown to be within a “just power” of government—that is, a power to which any rational person would have consented, such as the equal protection of their fundamental rights, including their health and safety.
This passage restates the end of government—human safety and happiness—and identifies the “form of government” as a means to this end. Therefore, the people have a right to alter and abolish any form of government when it is destructive of these ends, as the Americans declared the British government to be in the list that followed.
Jefferson adopted it from Article 3 of George Mason’s draft Declaration of rights, which affirmed “that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conductive to the publick Weal.”
* * *
The political theory announced in the Declaration of Independence can be summed up by the proposition I mentioned above: First come rights, and then comes government. According to this view:
Happy Fourth of July!